R. v. Burke, 2013 ONCJ 838

CITATION: R. v. Burke, 2013 ONCJ 838 DATE: July 23, 2013 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. HOWARD BURKE, MARLON (MARLIN) JONES and KEVIN LEY ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE MR. JUSTICE WAKEFIELD On July 23, 2013 at OSHAWA, Ontario ********** APPEARANCES: P. Murray Counsel for the Crown R. Burgess Counsel for the Accused H. Burke R. Richardson Counsel for the Accused M. Jones P. Affleck Counsel for the Accused K. Ley WAKEFIELD, J: (Orally) Howard Burke, Marlon Jones and Kevin Ley all face a series of charges arising from a home invasion with a firearm.

The charges are as follows: Mr. Jones, Marlon Jones, has robbery with a restricted firearm, break and enter a dwelling house, disguise with intent, possession of restricted firearm time two on each of Section 91(3) and 92(3) of the Criminal Code , occupy motor vehicle with a firearm, possess firearm with ammunition, possess firearm obtained by crime times two, Firearms Act Regulations regarding storage times two, possess firearm with removed serial number, breach of firearms prohibition and breach of probation.

Howard Burke faces the same charges, except counts 5, 7 and 17 through 19, though he has his own count of breach of prohibition order. Kevin Ley also faces the same charges as Mr. Jones except counts 3, 16, 17 and 19. He faces an additional charge of fail to appear from a recognizance. At the conclusion of the Crown case the Crown conceded and consented to the dismissal of count 11 against each of the defendants, and

count 18 with respect to Mr. Ley. Identity and party culpability are the crux issues before me. Testimony and submissions were heard on the above on following those dates, April 30 th , May 7, May 8, May 9 and May 10 of 2013. Subsequent written submissions have been filed with the exhibits. I have considered both oral and written submissions. Robert Jasmer was originally charged, but severed and called as a witness to these proceedings. The fourth accused was prosecuted as a young person who testified as a defence witness.

Robert Martin testified that he resides across the street from the subject property of the home invasion and enjoying a pleasant Sunday evening weather on his front porch when his attention was drawn to a car circling the street several times before stopping in front of 548 Front Street in the City of Oshawa. He described the motor vehicle as a charcoal coloured Hyundai. He sees three people get out of the car, one with a red hoodie, one with a black hoodie and one with a white one, and each with hoods up. Mr. Martin saw sufficient skin colour to assert the individual with a white sweater had dark skin. Mr.

Martin did not notice anyone carrying anything on their way to the house. The car windows were darkly and tinted and the witness was unable to see if anyone else was in the car. He watched them go to the back door and shove it open and then heard a female scream. Mr. Martin then walks into the street to jot down the licence plate number of the Hyundai. That plate number was provided to a male who came out of the house and ultimately to the police. Constable Powell was partnered with P.C.

Tisi that evening on a general patrol when they received a radio call regarding a residential robbery and the description of the getaway car and its licence plate. Upon observing a vehicle matching the description of the plate information they engaged the cruiser emergency lights and the vehicle pulls over and requests the assistance of other police. The officer described how the occupants of the two-door Hyundai are directed to exit one by one. The driver and owner of the vehicle was Robert Jasmer who exited first. Next to exit was the front passenger seat occupant, a separately charged young person, S.M.

Kevin Ley exited from the rear seat by way of the driver side. Howard Burke exited from the rear seat by way of the passenger side and Marlon Jones got out of the car last from the rear seat through the driver door. P.C. Powell did not note any clothing descriptions of the vehicle occupants, but in searching Mr. Burke sees a cigarette lighter and $140.00 in $20.00 bills. He also closed the vehicle windows and applied seals to the door and trunk pending a detailed search back at the police detachment. Constable Tisi testified and corroborated the same sequence of events.

He too confirmed hearing the radio broadcast of the robbery suspects’ car at 19:40 hours and activating the cruiser roof lights to pull over the vehicle at 19:43 hours. While not noting the identities of the first four individuals exiting the Hyundai, the officer took control of the fifth and identified him as Marlon Jones and a clothing description included a black sweater with a white pattern on the front. A search resulted in seizing from Mr. Jones $413.10 loose cash from his right front pants pocket, broken down as follows, 13 $20.00 bills, eight $10.00 bills, nine in fives and the balance in coins.

An iPhone and a keychain were seized from the defendant’s left front pants pocket. Constable Parker was partnered that evening with P.C. Laloo and responded to P.C. Powell’s request for backup. After an unfortunate short delay in responding the officers were on the scene at 19:45 hours. P.C. Parker took control of the young person from the car, S.M., who was wearing a black t-shirt and black pants and is the second person to exit the vehicle and did so from the front passenger seat.

The officer searched S.M. and seized the loose cash from the left front pockets, left front pants pocket amounting to three twenties and six fives and some coinage. In the right front pants pocket were seized a CIBC receipt, a $20.00 Rogers phone card and key chains attached to each other. Constable Laloo testified as to the arrest of Mr. Ley who was the third person exiting the Hyundai and did so from the rear seat via the driver’s side door. The officer conducted a search of Mr. Ley and seized $219.45 in cash and coin along with two cellphones. P.C. Laloo also searched Robert Jasmer and received $70.00.

Robert Jasmer testified. He confirmed he was still facing charges arising from the robbery and while unsure of the date believed his trial was in the fall. He was originally a co-accused but subsequently severed and would obviously have had access to his disclosure. He acknowledged his hope that his testimony would result in more lenient treatment by the Crown but was not relying on that hope. He testified in a manner that appeared nervous, occasionally distracted and, when identifying the defendants, fearful.

He has an interest in the outcome of this trial arising from both impact on the Crown discretion regarding his charges and a number of findings of fact to be made regarding who had possession of two guns found in the backpack within the trunk of his car in addition to a set of throwing knives also found in the trunk. I clearly must approach Mr. Jasmer’s testimony with a high degree of caution. Mr. Jasmer testified that he is 22 years of age without any criminal antecedents. He works full-time in Durham Region and is the registered owner and driver of the Hyundai motor vehicle

involved in the police takedown resulting in the arrest of the defendants. He knew Kevin Lay for a few months from purchasing drugs from Mr. Ley seven or eight times. That relationship evolved into Mr. Jasmer doing favours for Mr. Ley by driving him places for which Mr. Jasmer would receive free drugs. Mr. Jasmer was content to drive Mr. Ley around as the Hyundai was new and he enjoyed driving it. On the subject date Mr. Jasmer describes getting a text message from Mr. Ley requesting a ride. he picked up Mr.

Ley and at the latter’s directions then drove from Oshawa to Ajax to a townhouse complex where he picked up two males whose names he was not told but in court identified one as Mr. Jones and advised he subsequently found out the name of the youth S.M. There is a trip in search of an SIM card for S.M. and then a return to Ajax where a third male was picked up and identified in court as Mr. Burke from the same townhouse complex. For identification issues Mr. Jasmer and Mr. Ley are white males while the youth S.M., Mr. Burke and Mr. Jones are black males. Mr.

Jasmer denied any conversation about what was going to happen. In cross-examination he denied any conversation about planning another home invasion. He did not notice any of the three carrying anything when they got into the car. He followed Mr. Ley’s directions back to Oshawa where Mr. Ley directed him to drive past the house a couple of times and then told to park in front of it. He described Mr. Ley as staying in the car while the other three got out after someone passing up a backpack to Mr. Jones. He asserted that he had not seen the backpack before and was unaware of its contents.

The three males went up to the house in front of the parked Hyundai. After what seemed like 30 seconds the three males are running back directing him to drive off. Five minutes later Mr. Jasmer is directed to stop and told to put the backpack into his trunk. He returns to the car where Mr. Jones gives him $70.00 for gas money. Apparently, the $70.00 came from Mr. Jasmer’s wallet from the front console from which he had $200.00 all of which went missing. Mr. Jasmer claims his intent at this point was to just drop off his passengers and return home where he would be calling the police to report what had happened.

However, the police pulling him over interceded and all the occupants were arrested. Christina Ferreira is a young 23-year-old mother of a four-year-old and a baby. She was at home in 548 Front Street laying on the livingroom floor with her baby watching television with her then partner Andrew Poulson on the couch and his three-year-old son and her older child. She testified to hearing a knock on the back door and went to answer it to be faced with a black male holding a handgun, his face covered by a bandana and tightly tied hoodie.

She screamed and ran back to the livingroom where she felt the cold metal of the gun on her neck and a hand pushing her to the floor. The male demanded to know where the weed and the money were. She described the male putting a foot on her baby and another male in the house and there being another male in the house. The gun-holding male had a black hoodie like dull rain jacket and blue bandana with a white pattern covering his face while the other male a red hoodie with some type of symbol on the front. The male in the red hoodie kept his hands inside the hoodie sleeves.

The two hooded individuals ultimately go downstairs with Mr. Poulson who Ms Ferreira referred constantly as Drew. The red hoodie male came right back up and prevented Ms Ferreira from taking her children upstairs away from the sight of the perpetrators and the displayed gun. The two males then leave with approximately $600.00 savings the victims had hoped to use for a vacation. Ms Ferreira believes the only drugs in the house were about one gram of marijuana. Mr. Poulson then comes back upstairs and apologizes to his wife and then goes outside. Ms Ferreira confirmed knowing Mr.

Ley for about five years and considered him a friend. She did not recognize Mr. Ley as one of the two she saw in the house. Mr. Ley has white skin and the two hooded individuals black skin. She was not able to identify either Mr. Burke nor Mr. Jones as being in the house. She was unsure of the total number of people who invaded her home being focussed on the two having direct contact with her. Ms Ferreira denied having any marijuana plants growing or large amounts of drugs but did confirm that Mr. Poulson had been running drugs as a go-between but never saw any drug transaction between her spouse and Mr. Ley.

Andrew Poulson was the spouse of Ms Ferreira at the time of this incident and a roofer by trade. He denied dealing drugs, but admitted running the drugs for others averaging $5.00 per transaction. He confirmed being in the livingroom of the residence with Ms Ferreira and the kids watching television. He described Ms Ferreira leaving the room momentarily, screaming and running back, followed by a male who pushes her to the floor with a gun to her back. That male had a hoodie and bandana covering his face and described as black skinned and probably wearing black gloves. The gun was a revolver which appeared to Mr.

Poulson to be 15 or 18 inches then about 15 inches. Ms Ferreira is described crying on the floor pleading to the males not to harm her baby. Mr. Poulson recalls there being three males but felt there were more. One stayed with his spouse while another took him to the basement after Mr. Poulson denied having drugs in the house. Mr. Poulson gives up the family’s vacation savings of $570.00 which he recalls being a couple of fifties, some twenties, tens and fives. The males then left. Mr. Poulson described one male as black with a black hoodie and dark bandana with gloves.

The second male whom he assumed was black had on a red and white hoodie pulled tight to the face and can’t remember a description of the third male. Both Mr. Poulson and Ms Ferreira know Mr. Ley. They do not know Mr. Jasmer. Neither was able to identify any of the three males who entered their residence. P.C. Lenarts from the Durham Police Forensics Unit testified to finding a fully loaded revolver which was capable of firing, a Larson automatic pistol with a serial number erased but missing a magazine, nor round in the chamber and also capable of firing. And separately a set of throwing knives.

None of the defendants are licenced to possess the firearms. The Larson is prohibited due to its

small size. Mr. Burke is subject to both probation and weapons prohibition orders and Mr. Jones is also subject to a prohibition order. I accept that the defacing of the serial number is evidence of the weapon being obtained by crime as a logical inference as the purpose of the defacing is to prevent knowledge of where the weapon comes from. I note that they Hyundai was stopped by police around one kilometer from the robbery location at 7:43 p.m., approximately seven to eight minutes after the 911 call which is made two to three minutes after the Hyundai left the scene. None of the defendants testified. Mr.

Jones elected the youth S.M. as a witness. S.M. is a young person, 17 years of age. He previously plead guilty to this incident on counts of robbery with a firearm, break and enter, disguise with intent and breach of probation. He has a cognate prior record of robbery, disguise and assault bodily harm. He testified that Robert, referring to Mr. Jasmer, picked him up with Kevin Lay and then “the two next guys”. He knows Mr. Ley from before and had met Mr. Jasmer at some party which he cannot remember. They drove off to buy some weed and then decided to rob the dealer instead. The dealer was a friend of Mr. Jasmer.

Mr. Jasmer and the guy in the back were the ones who plotted the robbery. S.M. was along to help on the promise of being given one of the three guns he was shown. The two unknown guys were definitely not Mr. Burke and Mr. Jones. S.M. had come to court to testify to what really happened because Mr. Burke and Mr. Jones were two nice guys who didn’t do the robbery but were getting into trouble for it. S.M. wore the red sweater while the unknown male in the black sweater took a 357 Magnum from his waist and waved it around.

They grabbed a pound of weed and some cash and ran back to the car where they then planned to do another home invasion, but then decided not to. The two unknown males then exited the car to walk off and do the other robbery by themselves as Mr. Ley had received a phone call to go pick up Mr. Burke and Mr. Jones. S.M. denied previously telling the Crown and police he only knew Mr. Ley or that it was Mr. Jones with them. He didn’t care when pleading guilty in youth court to advise either the judge nor his own lawyer about the wrongful arrest of these two passengers.

He was confused about ever being in Oshawa before despite apparently being driven there from his previous group home to attend school. He described Mr. Jones with long dreds despite never having seen his hair. He had difficulty remembering his own clothing. He was confused over his girlfriend’s address being either Oshawa or Ajax. He was confused over how he met Mr. Jasmer for the first time in the car or at a party introduced by either some unknown person or by Mr. Ley. Oddly, if he only had met Mr.

Jasmer the once or even one prior time at a party he familiarly referred to him as Robert throughout his testimony. S.M. had read his disclosure and was aware then of one witness describing a white sweater and S.M. describes the white jacket person standing by the doorway during the robbery. He testified that Mr. Burke was picked up first after Mr. Ley gets a phone call and they go to pick up Mr.

Jones at either the Go Train Station or the Go Bus Depot, he doesn’t recall which or even if there was a large open parking lot at the place they went to, such as the Oshawa Go Train Station has where the Bus Depot does not. They had to wait a couple minutes at the station for Mr. Jones. He doesn’t remember how long they drove after the robbery but does confirm stopping as well to put the bag in the trunk and for the first two passengers to exit the car. At the robbery scene S.M. is pretty sure it was Mr. Jasmer who pointed out the target house.

Essentially, S.M. described a rather incredible sequence of events in which the two real perpetrators got out of the car and the few minutes between the robbery and police apprehension one with a 357 Magnum in his waistband and a pound of marijuana and a 12 by 12 bag stuffed down his pants walking off to do another robbery after which they would probably grab a taxi to go to their home. After that the car goes to two separate locations to pick up the two defendants and then go off to smoke some weed, that was the plan. S.M. is discreditable and more than unworthy of belief. His testimony was blatant perjury.

The perjury was so blatant that consideration should be given to prosecution. He clearly was present to exculpate Mr. Jones and Mr. Burke and for the most part given Mr. Ley a pass beyond presence pointing to Mr. Jasmer as the mastermind to the operation. That assertion, in my view, is ludicrous when S.M. also corroborates Mr. Jasmer as getting gas money from someone. I do agree with the Crown’s submission that one would not expect masterminds of robberies to get gas money from another when deferring splitting the robbery proceeds.

However, having found as a fact S.M. perjured himself it would be inappropriate to bootstrap that finding as any sort of evidentiary basis for conviction of either Mr. Burke or Mr. Jones. S.M.’s motivation for lying in court might be based on many reasons and totally without the knowledge or arrangement by either defendant. In rejecting the testimony of S.M. I am, however, left without any evidentiary basis for any other two perpetrators to have been initially involved then exit Mr. Jasmer’s vehicle just in time for Mr. Burke and Mr. Jones to enter the car just in time to be pulled over by the police.

The lack of investigation of all of the cellphones found within the Hyundai diminishes any evidentiary value with the one cell not being used to call Mr. Ley to pick up either Mr. Burke or Mr. Jones. Similarly, the trial proceeded in the absence of any DNA report from the Centre of Forensic Sciences. However, that lack of investigation does not in these circumstances undermine the Crown case. Nor do I assume the investigation would have assisted either Crown or defence cases. I do agree with the Crown submission that I can still accept S.M.’s testimony to the limited extent of confirming that the robbery was

planned, the cars’ occupants knew was to take place and that they were aware of the presence and intended use of the firearms. In so doing, I also accept that S.M. knew his reward was to be a gun, and one which was either shown in the rear of the car Mr. Jasmer was driving as part of earlier planning which included S.M. I lack any evidentiary basis to assess when S.M. would have known about the guns and his reward. However, I must take into account in assessing Mr. Jasmer that if the guns were shown in the backseat and discussed among them then Mr.

Jasmer must have known about the guns in advance of the robbery and known he was assisting the others by driving them to a robbery scene. I do accept as well that Mr. Jasmer minimized his involvement, though I am left in doubt to what extent or at which point in the driving that he became aware of what was about to occur. I do accept that he knew of the robbery and that firearms would be used prior to arriving at the robbery location.

While he is clearly and painfully aware of the impact of his testimony on his own fate in the hands of the Crown, and which testimony must be carefully weighed both in terms of vetrovec and his own self interest, I find that Mr. Jasmer was essentially a truthful and otherwise reliable witness. He is an accomplice but one without any criminal antecedents. His testimony is corroborated in essential aspects by both the proximity of the rest of the robbery and the shorter less time between the two events. As earlier described his demeanour was palpable fear when identifying Mr. Jones and Mr. Burke.

Of course, that fear may be that of the naïve dupe or of a knowing participant fearful of betraying his colleagues. Given the lack of criminal antecedents, his full-time job and his presentation and demeanour when testifying would to be strongly suggest that he was a dupe. I do not accept the assertion that Mr. Jasmer was the more accomplished liar compared to S.M., but rather that the inconsistencies between his testimony and statements to the police were minor and certainly insufficient to dispel my conclusions regarding Mr. Jasmer. Identity of the defendants is undermined by Mr.

Martin testifying to one of the robbers wearing a white sweater which would be contrary to the clothing found of the defendants. However, in the circumstances of observing just a few seconds and the excitement after the robbers left the scene in conjunction with black sweater having a prominent white design it is indeed a very good explanation for the inconsistency. I find Mr. Martin’s recollection of the sweater was more fixed on the design than the sweater itself and was mistaken on the colour recollection.

I am again reinforced in that conclusion by the parallels of the apprehended car and the car at the scene, the proximity, timing and the licence plate. Similarly, the inconsistencies of the victims of descriptions of clothing and firearm size must be taken in the context of a violent home invasion with firearms with the victims’ young children being present. Those description inconsistencies in no way detract from the corroboration provided by the proximity and time and place in which the defendants were apprehended. Indeed, Mr. Poulson’s description of the gun’s length varied by several inches.

In my view, it is a reasonable inference that victim descriptions in such circumstances can be inconsistent. The lack of questioning as to the firearm descriptions or for that matter the victim’s familiarity with firearms when describing them does not detract from the fact that firearms were indeed used in the robbery. As such, the clothing of the third person at the doorway of the victims’ residence not being confirmed by the victims does not, in my view, leave a credible doubt as to the presence of the white sweater.

It certainly does not in any way give credence to the testimony of S.M. given that person’s internal inconsistencies and nonsensical assertions, especially as Mr. Martin’s description of the white sweater would be known to S.M. from his own disclosure. Proximity of time and place may very well be circumstantial but sets out a distinct connection to the robbery neighbourhood. While it may be 10 or 11 minutes between robbery and apprehension Mr.

Jasmer’s testimony would have him stop once out of the immediate area to put the backpack in the trunk, discuss the payment for gas money and work their way through the somewhat maze-like subdivision roads to the point of apprehension. Even if the various time sources are not synchronized each time stamp corroborate each other within a minute or two. That would still have the Hyundai stopped within a dozen minutes of the robbery, a short enough period of time to make it a relevant factor in identifying this car. When the vehicle model and licence plate is added to the mix, the fact that Mr.

Ley was known to the victims, and there not being an evidentiary basis that purported two other males in the car, with the rejection of S.M.’s testimony proximity of time and place take great weight in connecting these defendants to this robbery together with the car descriptions and the contents of the car. I do not have an evidentiary basis to determine why the 401 was not utilized. It would be presumably a quicker exit and could have been accessed by travelling eastwards to Drew Street and south to the onramp, or even more quickly westwards to First Street and south on Simcoe to the onramp there.

Both onramps would be to the 401 westbound only. There is no answer why either route was not taken but, in my view, that does not weaken the Crown case given the identifiers which do connect this Hyundai to this robbery. AS for the money found among all the defendants it adds up to more than $200.00 Mr. Jasmer testified to having, together with the $600 or $570 the victims testified having been stolen. I do not have testimony of $50.00 bills being located on any of the involved parties despite Mr. Poulson’s testimony to the type of currency bills. Nor do I have testimony that $50.00 bills were not found. P.C.

Laloo did not specify the currency types found on Mr. Ley. In my view, that while the amount of cash found on Mr. Jones might be suspicious, $413.00 is not so large an amount of cash to draw inferences let alone become corroborative of Mr. Jones’ involvement by that fact alone. However, I do find it a reasonable inference that the gloves and bandanas in these circumstances are robbery paraphernalia and corroborative of the defendants’ participation including the inference of prior knowledge on all of the defendants together with Mr.

Jasmer and S.M. I also find it a compelling inference that the placement of the various defendants in Mr. Jasmer’s motor vehicle isconsistent with S.M., Mr. Burke and Mr. Jones being the individuals who actually entered and committed the robbery. I accept theCrowns submissions regarding the placement of the defendants being necessitated by a two-door car together with the placement ofclothing within the car in relation to each of the defendants. My conclusions are made without any consider of R. v.

Noble, (SCC), [1997] 1 SCR 874 and the Crown and defencesubmissions with respect to none of the defendants have testified. This issue arose in written submissions and I am not persuaded that Ishould in any way rely upon the lack of testimony of any defendant as a factor in any trial without far more detailed submissions. Theonus should remain firmly upon the Crown to prove its case beyond a reasonable doubt without coopting the defendants’ right to remainsilent.

In my view, the Crown case is clearly proven beyond a reasonable doubt in the involvement of each of the individuals found in theHyundai by the police in the robbery. On the evidence I have before me it is clear Mr. Ley was known to the victims of the robbery, would have prevented his entry in thehouse so as not to be recognized. Mr. Ley initiated contact with Mr. Jasmer to obtain his services as the wheelman. Mr. Ley is thecommon connection to both Mr. Burke and Mr. Jones.

While it is not clear to me which of the defendants brought the backpack in whichthere were guns, I am convinced beyond a reasonable doubt that prior to arriving at the victims’ residence all the parties in the car wereaware there would be a robbery and that firearms would be used. While I may believe it was either Mr. Burke or Mr. Jones who broughtthe backpack into the car given the respective prohibition orders I am not convinced beyond a reasonable doubt of that. I am convincedbeyond a reasonable doubt that Mr. Burke either used a firearm or was a party to that usage and that Mr.

Jones was actually using thefirearm given the description of the clothing associated to him. And that Mr. Ley, I find, had full knowledge of the intended use of thefirearms and participated in the planning of the robbery. I cannot say beyond a reasonable doubt that Mr. Ley was the lynchpin organizergiven the lead roles of Mr. Jones and Mr. Burke in the act of the commission of the robbery. Mr. Ley stand up. Mr. Burke stand up. Mr. Jones stand up. It falls that each defendant is convicted of each of the remaining offences ofwhich they are charged. ...WHEREUPON THIS MATTER WAS CONCLUDED **********